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Tanzania Judgment

TZHC

19840412 TZHC Mwanza

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Source document

01

Holding and result

The will was invalid as it was not signed by the testator nor attested by required witnesses; thus, the appellant was entitled to inheritance under customary law.

Court disposition

appeal allowed

Orders

  • Quash the proceedings and ruling in District Court Appeal No. 79/78.
  • Order that the appeal be treated as not filed.
  • Remit Katoma Primary Court C.C. 7/77 back to the trial court to enforce its judgment.
  • No order as to costs.

02

Material facts

Parties

Laurian Cyprijn

Respondent

Unnamed Appellant

Appellant

03

Procedural history

  1. Posture

    Civil Appeal / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant argued prejudice due to denial of representation while respondent was represented.
Respondent
Respondent objected to appellant's request for representation and relied on the will allegedly written by the deceased.

05

Court’s reasoning

  1. 01

    GN436/63

    A will must comply with statutory requirements including signature and attestation by witnesses.

06

Ratio, limits and disposition

Ratio decidendi

The will was invalid as it was not signed by the testator nor attested by required witnesses; thus, the appellant was entitled to inheritance under customary law.

Obiter and limits

  • Remanding the respondent's appeal would only encourage delay as it is clear it will not succeed.
  • Both parties agreed that settling the inheritance issue is preferable.

Court disposition

appeal allowed

  • Quash the proceedings and ruling in District Court Appeal No. 79/78.
  • Order that the appeal be treated as not filed.
  • Remit Katoma Primary Court C.C. 7/77 back to the trial court to enforce its judgment.
  • No order as to costs.

Source and reliance status

TZHC · 12 April 1984

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Judgment text

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Source document

TZHC

Judgment· 12 April 1984

19840412 TZHC Mwanza

( -

IN THK HIGH COURT OF TANZANIA (In the District Registry) at Mt-ianza a (nc) CtVIL APPEAL iTO. 127 OP 1979 (From the deÔision of t1i:c, district cou.rt of Thikol3a district at Pukoba in civil appeal Ho. 79 of 1978 fore:1K. ilachumu Esq4 District Magistrate)

VERSUS LAURIAN CYPRIJN : : : : : :: : : : : : : RESPONDENT

S

JUDGMENT MJNIRA 3:— This appeal arises out of an interlocu.tory ruling of the District Magistrate in his appellate capacity. The, original suit commenced in Katoma Primary Court. The appellant was the plaintiff and was claiming inheritance* The rc-spondent produced a will alleged tb have .bc-n written by the deceased (Onc- Damian) ioh, if nc- weit by it, disinlieritc-d the appellant. Howeiar the trial court declared th will invalid as it did not comply with the rules of,wills, as set forth in.GN436/6.3 e Th c-ffoctof it was that the appellant had a share in th intestate etc of the deceased under the custoary law. The respondent felt aggrieved and appealed 'p the District Court. .He;appointqdoneLeonard Kayo (the so called public writter) to represent him. The appeal procedad. Somcwhc-re in the midd1 (th District Msistrate said it was at the c-nd of the hearing) the appellant rose and said she wanted to ppoint sothone to represent her just as the rcspondt did. The rspond€nt side objected and the District ia.:istrate upheld the ohjcction. Hc-ncc this appeal. She argued she was prejudiced as the respondent was represented while she was dc-nied repr isentation. I have no intention to dc-cide whether t . hc District Magistrate was àOrrect or not. I am only satisfied that the respondent's appeal oVb of KatomaPrimary Cburt (dcclaring the will invalid) had no substance. The tc-statoi

did not sign it and it Was to by witnc-sscs reired b law. No ootrt worth of the nmc will acäc-pt its The despu.te tartdin 1977 and the appellant Iiàsnot got her hare of inheritance. To rmand the respondent's appeal to the District 'Court for hearing while it is claa it will not su.cced i0 to encourage the delay. roth parties S. agreed tht the r1ie' this inheri tance issue is settled t1d bettcr. 1 allow the appai. I quash the proce.i-ns and ruling in the D.strict Court Jpp€al ro. 79/78 and order that it be treated a Lwas'not filed at all. The reod of Icatorna Primary Couxt C.C. 7/77 be rcmitted beck to th a t oourt to Gnf,oj~ od Its jUdgc- mc-n-tp No ordcr as to oost. 2thjI8 ; IP.• .11 AY2I1!

JUDGIS 11

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GN436/63

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